Meistrich v. Casino Arena Attractions, Inc.

• Citation: 148 A.2d 199,54 N.J.Super. 25
• Decision Date: 26 January 1959
• Docket Number: No. A--489,A--489
• Parties: Sidney J. MEISTRICH, Plaintiff-Appellant, v. CASINO ARENA ATTRACTIONS, INC., a body corporate, Defendant-Respondent.
• Court: New Jersey Superior Court – Appellate Division

Page 25

54 N.J.Super. 25

148 A.2d 199

Sidney J. MEISTRICH, Plaintiff-Appellant, v. CASINO ARENA ATTRACTIONS, INC., a body corporate Defendant-Respondent.

No. A--489.

Superior Court of New Jersey Appellate Division.

Argued Nov. 24, 1958.

Decided jan. 26, 1959.

Robert V. Carton, Asbury Park, for plaintiff-appellant (Durand, Ivins & Carton, Asbury Park, attorneys; Robert V. Carton, Asbury Park, of counsel).

Solomon Lautman, Asbury Park, for defendant-respondent.

Before Judges SCHETTINO, HALL and GAULKIN.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

Appeal is taken from a County Court, Law Division, judgment entered on a jury's verdict of no cause of action and from a denial of a motion for a new trial.

On November 23, 1954, plaintiff was an invited guest at defendant's 'pre-opening' party at defendant's new ice skating rink. Shortly after 9 p.m. William Rediker, one of the defendant's officers, told plaintiff that there would be an ice skating show later stating, 'Well, we can't do it now because the ice isn't ready.' He pointed to and showed plaintiff a man who was spraying water with a hose up and down the rink, slowly, apparently to make the ice. About 15 to 20 minutes later Joseph Rediker, another of defendant's officers, came up to the plaintiff and a group of about eight to ten guests and said, 'If any of you would like to go out skating, go ahead out on the rink and you go over to the booth over there and they will give you skates.' One of the group asked: 'Joe, is it ready for skating?' Mr. Rediker said, 'Oh, sure it is ready. See, my wife is out there and my children are out there.'

Plaintiff did not go onto the ice until one-half hour to one hour after William Rediker's statement that the ice was not ready, but it was after Joseph Rediker's assurances that the ice was ready. Plaintiff and a Mrs. Lee skated together cross-handed. They made about three circuits of the rink, skating for about ten minutes. Plaintiff testified to a slight difficulty in maintaining footing while making turns but since they were skating slowly they did not have much trouble. While on the straightaway portion of the rink, Mrs. Lee fell, and plaintiff, to avoid 'cutting her to ribbons,' swung to the left and his skates went out from under him in a sideways direction causing him to fall and injure himself. He stated that there was no gripping of the skates to the ice when he made the left turn.

Plaintiff submitted in evidence the depositions of an out-of-state expert on the designing and engineering of ice-skating rinks and recreational facilities. The witness stated that he had supervised the construction of defendant's ice skating rink. With reference to the night in question he stated that the rink was not actually completed; that there was various work to be performed by painters, carpenters, other various trades in the actual readying of the rink for the official opening, which was not even completed after the public opening, that mechanically, as to the refrigeration equipment, the installation was complete; and that although they were making ice on the night of the accident, they had not completely finished making ice because of the various technical difficulties which caused them to be behind the schedule in the sense of not being absolutely and completely finished in this work. He also stated that on the day in question, November 23, they sprayed water on the ice by means of a hose, that the spraying went on in the early morning, during the entire day, and not only up to the time of the party but as well during the party. He stated: 'To the best of my knowledge, the rink was still being worked upon by myself and other employees of the Casino who had been hired to attend the ice. We were constantly spraying as we were more or less looking for a deadline of the following night, not particularly worrying about the so-called press party.'

When asked what was the normal thickness of the layer of ice that should be carried over defendant's ice rink cement platform, he answered that where the general public is admitted for skating, the required thickness would be at least a minimum of one inch and preferably an inch to an inch and a quarter to an inch and a half. He stated that the ice was half an inch to three-quarters of an inch thick on the floor during the so-called party, that that thickness was less than the required normal amount. Moreover, because the concrete and the ice on the cement floor of the rink were extremely cold, the ice became extremely hard. Additionally, because they were trying to let the ice absorb as much water as possible to get the desired required thickness, the ice was much harder than it would be under public skating circumstances. He explained this as follows:

'* * * When ice is extremely hard, it is harder than it would normally be used for public skating, it is extremely brittle and can be broken and holes put in the ice under circumstances that wouldn't ordinarily happen if the ice was warmer. This particular night in question there were holes in the ice due to the facts I have just mentioned. This due to the fact that there were people skating on the ice who had been invited to the opening.'

In his opinion the ice was not in safe condition for skaters of ordinary ability. He explained the basis of his opinion that the ice would be hazardous for an ordinary skater as follows:

'The ice being held at a colder temperature than would ordinarily be held for skating, public skating, would make the ice extremely hard and brittle so that when the person, a person who is not extremely agile or proficient, who had sufficient skating ability to realize the fact that the ice is extremely hard, would consequently cause holes to appear in the ice or chips of ice to crack out due to the fact that as they stroke they push on one foot and the action of the weight would cause a crack or a chip or something to appear on the ice because of its colder temperature.'

As we read the rest of his testimony--although admittedly at times confusing and contradictory--the jury could have found from its totality that defendant had invited persons who it knew were ordinary skaters to use an unsafe ice skating rink, but there would still remain the question of whether any such negligence of defendant was the proximate cause of plaintiff's fall, there being no testimony of any holes, cracks or chips in the ice at the location of plaintiff's fall.

Defendant rested at the close of plaintiff's case without making either a motion for involuntary dismissal. (R.R. 4:42--2(b)) or for judgment of dismissal at the close of the case (R.R. 4:51). At oral argument respondent's counsel stated that he did not do either because he felt plaintiff had proved a Prima facie case. In view of defendant's position, we do not consider the question whether or not on this record plaintiff had proved a Prima facie case. But see, VanDerbeek v. Conlon, 41 N.J.Super. 574, 580, 125 A.2d 531 (App.Div.1956). Moreover, as this was not raised on appeal, we do not consider the question and express no view with respect to it. Cloyes v. Delaware Tp., 23 N.J. 324, 336--337, 129 A.2d 1, 57 A.L.R.2d 1327 (1957).

The questions presented on this appeal are: (1) Was the trial court's charge erroneous in respect to (a) the jury's consideration of the fact that defendant did not produce any evidence?; (b) the charge of assumption of risk; (c) the charge as to plaintiff's knowledge of the condition of the ice; (d) the charge as to intervening cause; (e) the charge as to contributory negligence; (f) the charge as to the burden of proof; and (g) the charge that there is a presumption against negligence?; and (2) should a new trial have been granted?

Appellant contends that the trial court erred in instructing the jury as follows:

'Ladies and gentlemen, this has been a case somewhat different than probably those of you have heard during your term of service because there has been no evidence adduced affirmatively on the part of the defendant. Now, that fact alone should not enter or may I say circumscribe or guide your decision in this matter. Because the determination as to the method of trial by respective counsel is within their sole province. And the law which I am going to give you will be applied by you to the facts which have been introduced in evidence, because facts may be proven by adverse witnesses through direct examination or cross-examination, just as well as by the introduction or swearing of other witnesses.'

'Now, of course, you only have the witnesses on one side, so it isn't a question of a production of witnesses, but the evidence that is obtained or produced from the witnesses that have been sworn and have given testimony in the case. In other words, the evidence obtained by the plaintiff as against the evidence obtained by the defendant. Of course, there is testimony of certain facts which could have been controverted by the production of evidence to the contrary. You would have a right to believe that if those witnesses were produced, that they would not have been able to testify to the contrary.' (Emphasis added.)

Plaintiff's reasoning is that any time a defendant rests at the close of a plaintiff's case, he is subject to adverse inferences because of failure to call any witness. But plaintiff has pointed out no specific witness that defendant has failed to call to the stand, nor any specific evidence that has not been introduced. In Michaels v. Brookchester, Inc., 26 N.J. 379, 391, 140 A.2d 199 (1958), two specific employees of the defendant were involved and defendant failed to produce them as witnesses. In Series Publishers, Inc. v. Greene, 9 N.J.Super. 166, 170, 75 A.2d 549, 551 (App.Div.1950), a specific employee who could have identified a certain sample was not produced. The court said: 'A judge who is the trier of facts may, like a jury, attribute significance to the failure of a party to call A...